State v. Watson ( 2017 )

[Cite as State v. Watson, 2017-Ohio-1402.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-07-138
: OPINION
- vs - 4/17/2017
:
MAURICE L. WATSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-02-0153
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Maurice Watson, appeals his conviction in the Butler
County Court of Common Pleas for aggravated trafficking in drugs within the vicinity of a
school.
{¶ 2} The Butler County Sheriff's Office began investigating Watson after a
confidential informant indicated Watson was involved in drug activity. Agents with the Butler
County Undercover Regional Narcotics Unit ("BURN") worked with the confidential informant
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to perform a controlled buy. The confidential informant was given an audio and video
recording device and money to purchase drugs. The confidential informant then approached
Watson's residence.
{¶ 3} Joanice Sharp, Watson's girlfriend who lived with Watson in his home, unlocked
the door to the residence and entered with the confidential informant. Sharp and the
confidential informant then discussed the increase cost of drugs, and that Sharp was a drug
user herself. Sharp told the confidential informant that she had to pay for her drugs because
Watson did not "feed her" for free. During that conversation, Watson walked into the room
and sat on the couch.
{¶ 4} Within the video taken by the confidential informant, Watson can be seen with a
baggie in his hand that contained a substance. After Watson handed the confidential
informant the bag, the confidential informant complained that the bag was not tied in the
manner that Sharp normally tied the bag. Watson then stated that he did not "work in
customer service."
{¶ 5} The confidential informant returned to the BURN agent's car, and handed him
the baggie. The substance was tested, and proven to contain fentanyl, a controlled
substance. Watson was arrested and indicted for aggravated drug trafficking and aggravated
possession. The charges carried an enhancement that Watson committed the drug-related
crimes within the vicinity of a school. Watson pled not guilty, and the matter proceeded to a
two-day trial. The jury found Watson guilty of both charges, and the trial court merged the
counts before sentencing Watson to 30 months in prison. Watson now appeals his
conviction and sentence, raising the following assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S RULE 29
MOTION FOR ACQUITTAL AS EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
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TO SUPPORT THE CONVICTION OF AGGREVATED [SIC] TRAFFICKING.
{¶ 8} Watson argues in his first assignment of error that his Crim.R. 29 motion should
have been granted.
{¶ 9} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the
same standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota,
12th Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5.
{¶ 10} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt beyond a reasonable
doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9.
Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus.
{¶ 11} Watson was convicted of aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1), which provides, "No person shall knowingly do any of the following: sell or
offer to sell a controlled substance or a controlled substance analog."
{¶ 12} During the jury trial, the state presented evidence, that when viewed in a light
most favorable to the prosecutor, proves that Watson was guilty of aggravated trafficking in
drugs.1
1. As will be addressed within Watson's second assignment of error, the enhancement for committing the crime
within the vicinity of the school was also proven by the state. Although Watson was also convicted of aggravated
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{¶ 13} The state called an agent with the BURN unit, who testified that he was
involved in an investigation of Watson that started with a tip from a confidential informant that
Watson was involved in drug activity. The agent testified that the investigation included
conducting a controlled buy involving the confidential informant at Watson's home. The
agent testified that Sharp and Watson lived in Watson's home, and that he gave the
confidential informant a video and audio device to use during the buy. After the confidential
informant was patted down to ensure that she was not carrying any drugs or paraphernalia,
the agents gave the device to the confidential informant. Agents also gave the confidential
informant $60.00 to purchase the drugs.
{¶ 14} The state then showed the jury the video captured by the confidential
informant's recording device during the controlled buy. Within the video, Watson is seen
sitting on the couch with a baggie in his hands. The confidential informant is looking at
Watson when she takes out her money, and then an exchange occurs between the two, with
Watson handing the confidential informant the baggie. The baggie was later determined to
contain the controlled substance fentanyl.
{¶ 15} The agent then testified that after the controlled buy, the confidential informant
returned to the agent's car and gave him the baggie. The agent also confirmed that the
confidential informant returned to the car with no money.
{¶ 16} The state also called a forensic scientist who was employed with the Bureau of
Criminal Identification as a chemical analyst. The analyst testified that the substance
contained in the baggie, as given to the BURN agent by the confidential informant after the
controlled buy, was fentanyl. The analyst also testified that fentanyl is a controlled
substance.
possession of drugs, that count was merged for the purposes of sentencing, and Watson does not challenge that
conviction on appeal.
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{¶ 17} After viewing this evidence in a light most favorable to the prosecution, we find
that any rational trier of fact could have found the essential elements of aggravated drug
trafficking proven beyond a reasonable doubt. As such, the trial court properly denied
Watson's Crim.R. 29 motion, and Watson's first assignment of error is overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE CONVICTION AS RELATED TO THE ENHANCEMENT FOR DRUG
TRAFFICKING IN THE VICINITY OF A SCHOOL WAS INSUFFICIENT TO PROVE THE
INCIDENT TOOK PLACE IN THE VICINITY OF A SCHOOL.
{¶ 20} Watson argues in his second assignment of error that the state failed to prove
that his crimes were committed within the vicinity of a school.
{¶ 21} According to R.C. 2925.03(C)(1)(b), if the offense was committed within the
vicinity of a school or juvenile, aggravated trafficking in drugs is a third-degree felony. R.C.
2925.01(P) and (Q) define "in the vicinity of a school" as being "on school premises, in a
school building, or within one thousand feet of the boundaries of any school premises,
regardless of whether the offender knows the offense is being committed" within these
specified areas.
{¶ 22} School, as used in defining school premises, is defined within R.C. 2925.01(Q)
as:
any school operated by a board of education, any community
school established under [R.C. Chapter 3314], or any nonpublic
school for which the state board of education prescribes
minimum standards under [R.C. 3301.07], whether or not any
instruction, extracurricular activities, or training provided by the
school is being conducted at the time a criminal offense is
committed.
{¶ 23} The school enhancement specification increases the felony level for the
offense and must be separately established beyond a reasonable doubt. State v. Howard,
12th Dist. Warren No. CA2012-04-034, 2013-Ohio-1489, ¶ 55. As such, it is "an essential
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element of the state's case-in-chief." Id. The intent behind the school enhancement
specification is "to punish more severely those who engage in the sale of illegal drugs in the
vicinity of our schools and our children." Id.
{¶ 24} The state called a BURN drug task force sergeant who supervises daily
activities of the unit such as undercover buys, execution of search warrants, and arrests.
The sergeant testified that Watson's apartment building backs up to the Highland Elementary
School, which is part of the Hamilton School District. The sergeant further testified regarding
pictures of Watson's apartment, which depicted the closeness of the school to Watson's
apartment, as well as a measuring device utilized by the BURN unit to measure the distance
between Watson's apartment and the school.
{¶ 25} The sergeant then testified about measuring the distance between Watson's
apartment and the Highland Elementary School. The sergeant measured 65 feet, 1 inch
between the school property and the apartment building, and 121 feet between the
apartment building and Watson's apartment. Therefore, the total distance between the
school and Watson's apartment was approximately 186 feet. The sergeant then testified that
the school was in use on the day of Watson's arrest.
{¶ 26} While Watson argues that the state did not present sufficient evidence
because "merely calling a building a school does not meet the required level of proof to
establish the school vicinity enhancement," this court has previously held that "circumstantial
evidence may be used to prove that a building falls under the definition of 'school' required by
R.C. 2925.01(Q)." Howard at ¶ 66.
{¶ 27} The state provided testimony from the BURN sergeant that Watson's
apartment was within 186 feet of the Highland Elementary School, and that such school was
part of the Hamilton City School District. The state also presented maps of the area that
showed the proximity of Watson's apartment to the school. As such, and when viewed in a
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light most favorable to the prosecution, the school enhancement was supported by sufficient
evidence. Watson's second assignment of error is, therefore, overruled.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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